by SC Reporter Emilie Alfino
The grant that Lee County awarded to Community Housing & Resources’ Riverview II project has raised questions about Sanibel’s affordable housing program and whether it meets the requirements of the Federal Fair Housing Act.
The grant is subject to a related set of nondiscrimination requirements, and Lee County has expressed reservations regarding regulations governing Sanibel’s affordable housing program.
At its July 21 meeting, the City Council decided to convene a workshop with the Planning Commission to discuss the matter. The purpose of the workshop was to discuss possible revisions to the code that set forth eligibility requirements for entry as a resident to the city’s Below Market Rate Housing program.
“The genesis of this subject was the application by CHR for a grant to support the development of Riverview II affordable housing,” explained Mayor Mike Miller. “But even though the genesis was Riverview II, the question of fair housing compliance relates to all of our BMRH properties. If Riverview II were canceled today, we would still have to go through this process to ensure that our program rules, our eligibility rules, do not violate federal fair housing laws.”
Miller stated that the workshop’s discussion could include a reconsideration of a resolution already enacted that increases the density limits for Riverview II.
“These resolutions include provisions that might be in violation of fair housing laws and may need to be amended depending on what is decided,” Miller said. “There are still many aspects of Riverview II remaining to be discussed, including the financial aspects of the project. These will be discussed at future City Council meetings.”
Eighteen people participated in the workshop, including the Planning Commission (7), City Council (5), CHR Executive Director Nicole Decker McHale and CHR Housing Administrator Bonnie McCurry (2), and from the City, City Manager Dana Souza, City Attorney John Agnew, and Planning Director Paula McMichael (3), and Claudia Wack from Klein Hornig LLP (1).
Klein Hornig LLP is a nationally recognized law firm with extensive experience advising local governments and affordable housing providers on federal fair housing law and Housing & Urban Development-funded housing programs.
The workshop was for discussion purposes only; no voting would take place. The BMRH issue will then move to the Planning Commission for discussion and a public hearing, and to the City Council for discussion, first reading, and a public hearing.
The proposed rewrite of the applicable code (Section 102-102) includes program eligibility, tenant selection priority, and applicant ranking criteria.
Also under discussion was a provision that, if a BMRH unit remains vacant for more than 31 days, it can be offered to an off-island person. That was the first recommendation of Klein Hornig LLP. Council members and Commissioners suggested 90 days instead, which Klein Hornig said was acceptable.
City Attorney John Agnew said it was his preference to include this clause. “I like the idea of 90 days,” Agnew said. “It may not be something that anyone likes, but from a practical perspective, you just never get there.”
“If there is a need for workforce housing, as we have heard there is again and again and again, I don’t think we get to day one,” Agnew continued. “I certainly don’t think we get to day 90. And if we don’t, then there’s never that other person who doesn’t work on Sanibel or doesn’t qualify; that person never gets on the island.
“And if we get to the point where we’re 15 or 30 days in and CHR and the City and the San-Cap Chamber put out an alert to say Hey, there’s an opening – if that doesn’t bring it, number one, I’m shocked that it hasn’t happened, and two, I can’t fathom that happening,” Agnew said.
Furthermore, Agnew said that if that were to occur and BMHR doesn’t get the responses they need and reaches the 90-day limit, then the need is not there, and the unit shouldn’t be left open because CHR needs the income.
“I don’t think you ever get anywhere close to 90 days,” Agnew predicted.
Discussion included changing the name in the Sanibel Plan from “Below Market Rate Housing” to “Workforce Housing,” which would emphasize that the program exists for Sanibel workers.
“Workforce housing has always been the goal; we need to codify that,” said Council member Holly Smith.
There are, of course, a set of requirements to live in CHR housing. “As a general rule, we recommend occupancy preferences in lieu of requirements,” is Klein Hornig’s advice.
A requirement that both household members be employed full-time on Sanibel was questioned. It poses a problem if a household member is unable to work because they are caring for an elderly relative or child. Or if one household member is disabled. So as not to make these cases discriminatory, the requirement could be that just one household member be employed full-time on Sanibel.
Preference can be given to essential workers, City workers, and families with school-age children. “The Sanibel School is important,” said Planning Commissioner Lyman Welch. Welch also suggested giving preference to teachers and said a background check should be required for prospective tenants.
Klein Hornig recommended against ranking applicants based on length of residency. Also:
• They identified concerns with a workforce occupancy policy that requires all adult residents to be employed full-time.
• They identified concerns with a workforce occupancy policy that excludes individuals with disabilities who cannot work full-time.
• The program must provide equal treatment to seniors currently living on Sanibel and retirees with a Sanibel work history
• They recommend only requiring one adult per household to demonstrate full-time employment.
Planning Commissioner Kate Sergeant suggested that, as workforce housing, CHR could do away with the other issues – maybe make it first-come-first-served.
There is also a question of what to do about senior housing. If it’s strictly workforce housing, then it would not consider retirees. That needs to be decided. City Manager Dana Souza commented that Casa Mariposa, a senior housing facility, consists of two-bedroom units needed for families. Seniors could be placed in one-bedroom units instead, he said.
According to Klein Hornig, “We believe that the Age Discrimination Act of 1975 permits Sanibel to drop retiree eligibility from the BMRH program if the program is codified in ordinance as a workforce housing program.”
The Sanibel Plan speaks of “affordable housing,” not “workforce housing,” so that would require a revision to the Plan. The Plan also opens the program to “senior members of our community with limited access, [who] may be denied the opportunity to live among life-long friends.”
“All of that language needs to be reworked if the program is only for workforce,” said Planning Director Paula McMichael.
The Planning Department will work on draft legislation to bring to the Planning Commission and then City Council. There will be ample opportunity for public comment.
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